Assume for argument’s sake that Suit A is filed in the 11th Circuit, and the Plaintiffs are from Florida, Virginia, and California. Suit B is filed in the Fourth Circuit, and the Plaintiffs are from New York, Virginia, and Florida. Both suits are challenging the constitutionality of a new law. The 11th Circuit finds that it is constitutional, and the 4th Circuit finds that it is unconstitutional. The case is appealed to the Supreme Court, cert is granted, and the cases are consolidated. Because a recently-appointed Justice advised the President on the constitutionality of this law, that Justice is recused. The case splits evenly–4 votes that the law is constitutional, and 4 votes that it is unconstitutional. Usually in a 4-4 split, the Court affirms the lower court’s opinion; but in this case there is a circuit split. Which opinion is affirmed?
Would the law be unconstitutional in the 4th Circuit but not in the 11th? What about the Virginian who filed suit in the 11th Circuit? Would it now be constitutional as applied to him or her, even though the Circuit in which he resides found it unconstitutional? What about the New Yorker and Californian? Would the Second or Ninth Circuits have to address this issue? Would it be unconstitutional in their states?
This would be a huge mess. Any ideas if this has ever happened before? Any ideas how this would work?
Update: Ted Frank on Facebook commented that this happened in Warner-Lambert Co. v. Kent.